A simple question

In a couple of hours, the lawyers will make their closing arguments in my criminal case. After that, the jury will deliberate and we’ll wait for the verdict. That has prompted me to think about trying cases to juries and a simple question. Should jurors in criminal or civil cases be allowed to ask questions of witnesses during trial?

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I have long thought that the answer is yes for both criminal and civil cases. Why wouldn’t we want to give the people deciding the case the opportunity to seek clarification on points they don’t understand? Good lawyers certainly want to know what is in the mind of the decision maker so they can tailor their presentation to addressing the deciders’ concerns. Some may worry about jurors raising inappropriate or inadmissible topics, but better to hear about them than have them occur in deliberations. And in any case, courts that permit jury questions usually require that they be submitted in writing to the judge, both to avoid identifying the juror asking the question and to permit the judge to exercise control.

For those who oppose the practice, I have an equally simple question: why should we permit judges to ask questions during bench trials or oral arguments if we don’t allow jurors to do so?

That’s no simple question! At the surface, the question appears to be merely whether we want an active panel of jurors or a passive,panel of jurors (the answer seems simple too: why shouldn’t they ask questions?)

But that surface analysis is the tip of the iceberg. For example, imagine a murder case where a black defendant’s mother testifies about his actions that night to establish an alibi, and a white juror stands up and asks her “How does it feel to know that you birthed leech?” Is this juror bias? Should we allow this type of question? How about if a juror asks whether a witness believes in God?

The problems in the above paragraph seem like they could be solved by having the judge ask questions submitted by the jury. But problems exist there as well. For example, imagine a trial where a juror asks a judge a factual question that is material to the defendant’s case, but the judge refuses to ask it. Is this reversible error? May the judge modify the questions submitted, or must he ask them as written? What happens if he does not?

Each approach has advantages and disadvantages. From an efficiency standpoint, having a jury that does not ask questions makes the most sense. It also creates the impression of a neutral panel that does not tip its hand before deciding the case. But jurors may not fully understand the testimony, and latent biases that could decide the case for the wrong reasons might be hidden from the court.

Yet, from a standpoint of reaching a fair verdict, perhaps it makes sense to have jurors asks questions. From my (limited) knowledge, most jurors seem to take their responsibilities very seriously, and would ask good factual questions. But jurors can reveal to the attorneys what they are thinking, and perhaps open themselves to more persuasion.

It seems that a judge that asks the jury questions is a solid middle ground. But, rather than choosing just one of these as best for the entire country, I believe it would be best to give each state and each circuit options in how they deal with juror questions. They should choose based on the culture of the area. I don’t think any one type of procedure has huge advantages over the other.

The right to a trial by jury preserved by the Seventh Amendment is that which existed at common law at the time the Amendment was adopted. Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). In 1794, even in the rarefied air of SCOTUS (which was intended to be a court of original jurisdiction for certain classes of cases and, technically, still is), a jury was understood as being ultimate master of both fact and law. Georgia v. Brailsford, 3 U.S. 1, 4 (1794). (Note that at the time, the prosecution of crimes was generally regarded as a private matter, and there was no distinction between a civil and criminal jury.)

The word “preserved” has meaning. Marbury v. Madison, 5 U.S. 137, 174 (1803). It is the only time it is used in the Constitution, and appears to have no technical meaning at common law. A court “must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (collecting 200 years’ worth of case law).

While it is always better to leave such matters to counsel–especially, as questions from a judge might suggest impermissible bias–it would logically follow that if you can ask questions, they can ask questions.

I have had a number of trials in which jurors were allowed to present questions to the judge in writing, we were allowed to review, make objections which were ruled upon and the witness then was asked the questions. It struck me as a good idea. Better to let the juror have a question answered during the trial then left in a quandry in the jury room during deliberations. A good trial judge can handle anything in the courtroom so there never was any bizarre occurrence. Usually the questions were as simple as clarifying prior testimony or wanting more specificity.
Of course if the trial judge had the time to spend on these bench conferences, seems to me there was plenty of time to have allowed for a true voir dire, just saying.

They allow it in state courts for nearly two decades. If there was something wrong with it they would have put a stop to it. Sometimes even one or two jurors have more knowledge and the intelligence to use that knowledge than all the lawyers put together and they are the ones presenting the case.

The stringent decorum of the federal system needs to open up and stop dragging its feet on cameras in the courtroom as well. Of course the pilot program of experimenting with cameras in 15 federal courtrooms is a start and the Judicial Conference just extended that experiment by one year for total four years.

You talk about suffering under the sequester and how public defenders and their clients are hurting with next to zero funds to order transcripts during trial? It is definitely counterproductive and insane to not allow a CJA lawyer and therefore any litigant in a criminal trial to not be able to use a camera where they can get several views streamed into their PCs and because of the miracle of software to time stamp every frame of video and audio, counsel could during the testimony put on earplugs and search for a specific time in the record and be able to crucify the witness while still on the stand playing back to the jury both the witness’s mannerisms and voice for purposes of cross-examination.

Now that’s real progressive progress.

Of course, if federal court reporters want to keep their jobs, as civil servants, those that specialize in real time transcription, the text that they produce will also be integrated with the real time video and now the lawyers and the judge will be able to search the record by text and or by time.

Yes, real time enabled reporters will make goofs and drop words here and there, have mishearings, any number of inaccuracies will occur, but when we have now video as a crucial component to the record, any mistakes they make will be overruled by the video soundtrack!

But I am not going to hold breath for the Judicial Conference to implement this obvious and necessary service which will serve to really enhance opportunities for all concerned especially when members of the CJA panel have a choice to order just the searchable video by time for a nominal fee or also request the more expensive court reporters real time feed.

The questions are going to influence witness testimony–it’s why the lawyers structure their questions and the order of the questions in the way that they do. Let the lawyers handle that.

Second, the Brits walked away from juries as both developers of facts and triers of them quite a while ago (though not so long as you might think), and for good reason: the community at large, who are the primary beneficiaries of jury trials, can have no obvious reason to believe the jury arrived at an objective verdict about a case that the same jury developed in the first place.

However, juries remain triers of fact, and properly so. As part of that, they need also to be able to understand the logic being used to arrange the facts so as to create a case.

Thus: let the juries ask their questions, let them ask in real time as the witness is testifying, and let them ask later in the trial as it’s ongoing, including asking about a prior witness’ testimony. However, treat these two sets of questions as distinct from each other (albeit with some overlap).

Also, make the questions go through the judge who should be the one actually to read the question. This will let the judge eliminate questions like “When did you stop beating your prior paramour, Ms Arias?” The questions should be limited to questions of fact, of clarifications of fact, and of the logic into which they fit. That last is deliberately vague, but while juries ought not be handed a logic as their sole means of considering the facts presented, they also should not be handed a pile of facts alone and told to make sense of them. This also is why the lawyers structure their cases the way they do, and it makes it important that the juries are able actually to follow that logic. Summations don’t get at this very well.

The logic questions, if accepted by the judge, could be directed to the lawyers, away from the witness (a major change in current procedure). There should be no interplay going on here: when the lawyer(s) answer the logic question, followup questions like “Well, why isn’t it this logic, instead?) should not be accepted.

The questions that reach to an earlier part of the trial could be directed to a recalled witness or to the lawyers, as the judge and lawyers deem appropriate (assuming the judge accepts the question at all). Nothing like instant replay in the courtroom.

The answer controls the kind of legal system we have. Ours is, for good or ill, an adversary system in which the role of the jury is not to conduct an independent investigation but to rule on whether the party with the burden of proof on an issue has met that burden.

While questions from the jury might provide useful insight to the parties – knowing what the jury is thinking can help them tailor their presentations – and might make the jurors feel better by having at least some of their questions resolved, juror questions turn the jurors not into advocates necessarily but into investigators. We tell them not to go to the scene, not to conduct research, not to investigate. Then we let them ask questions and undercut the force of those commands.

There are reasons a lawyer might wish not to bring up an issue or ask a question. The juror might want to know, and it might be admissible information. It’s still not the jury’s call.

I’ve argued this strenuously in Ohio courts, in public forums, and personally with judges. Many of my colleagues have said they like the practice. Ultimately, the Ohio Supreme Court said it’s just fine for juries to ask questions. I think they were wrong.

And in answer to the question posed by Nebraska Expat (and more than one appellate judge before whom I’ve made this argument) who wonders why one might oppose juror questions when it’s just fine for judges to ask questions or witnesses: That’s wrong, too. And for the same reasons.

Yes, but juror’s questions, like those of counsel should be subject to objection by either party and the Rules of Evidence. My experience with the practice of jurors being permitted to ask questions is from nearly 20 years of courts-martial practice (criminal) as a judge advocate (attorney) on active duty in the military. Over my time in the military I served as a prosecutor, later as a defense counsel, and also as a military judge. Jurors are instructed at the beginning of the trial that after counsel finish with a witness that they may ask questions of the witness. Jurors are instructed that they must ensure that they remain nuetral during the course of the trial and that they may not become an advocate for either side. They are also advised that their questions are subject to the same rules as those asked by counsel, and that they may infer nothing from the fact that a particular questions isn’t asked. Jurors submit their questions in writing on a blank form that is provided to them. The form (with the question – one question per form) is then provided to the prosecution and defense and each have the opportunity to annotate an objection to the question on the form. The judge is then provided the form and can read the question and rule on any objection. Typically if there are multiple questions from jurors, the judge will accumulate all of the forms at the bench after counsel have reviewed them and then address objections (often multiple jurors ask the same/similar question). Occassionally resoultion of any objection requires a bench conference. The judge then asks the juror’s questions of the witness. If there are multiple questions asked, the witness would have no idea which juror asked the question (obviously if there is only one juror with a question, the witness sees the form changing hands). All of the submitted questions, whether permitted to be asked or not, are attached to the record as exhibits.

Certainly as a prosecutor I may have cringed at a question posed by a juror that the defense counsel did not ask … and I did the same as a defense counsel when a juror may have asked a question that cleared something up that I might have argued in closing was fuzzy. But in toto, I believe it was a good/sound practice. Jurors shouldn’t be rendering verdicts based on confusion or questions they have to which the answers are readily available in the courtroom. I would distinguish the practice of allowing jurors to ask questions, subject to the rigor outlined above, from one who independently visits a crime scene or researches something relevant to the case on his/her own.

Eric: “the community at large, who are the primary beneficiaries of jury trials, can have no obvious reason to believe the jury arrived at an objective verdict about a case that the same jury developed in the first place.”

Thomas Jefferson responds: “We all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does.”

Our rights are more likely to be secure when jurors are the final arbiters of law and fact, as Sir John Hawles, Solicitor-General to King William III, observes:

“Tho’ judges are more likely to be able than jurymen, yet jurymen are more likely to be more honest than judges; especially in all cases where the power of the prerogative, or the rights of the people, are in dispute. Our rights, therefore, both as individuals, and as a people, are more likely to be secure while juries follow the result of their own opinion;for less danger will arise from the mistakes of jurymen, than from the corruption of judges.”

John Hawles, The Englishman’s Right: A Dialogue Between a Barrister At Law and a Juryman 71-2 & fn. (1680) (reprinted 1844). Blackstone adds that it is “the most transcendent privilege which any [English] subject can enjoy, of wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” 4 Wm. Blackstone, Commentaries on the Laws of England 379 (1765). There is just something inherently wrong with a man serving as judge, jury, and executioner, and even worse when a court “wanted [the result] badly enough to lie to get it.” Karl Llewellyn, The Common Law Tradition: Deciding Appeals 135 (1960). This is also why, as Professor Thomas has added here recently, summary judgment is spectacularly unconstitutional.

The jury developed in response to the problem presented by the spectacle of royal judges who served at the pleasure of the King presiding over a dispute between the Crown and a subject. Judges are pretty much like they are today, ever eager to decide a case in a way that benefits them; human nature does not change. In such a dispute, ever mindful of the effect a Crown-unfriendly ruling might have on his sinecure, he could pretty much be counted on to put his fingers on the scales of justice to preserve his position, just as our judges have done. E.g., Bradley v. Fisher, 80 U.S. 335 (1872), Pierson v. Ray, 386 U.S. 547 (1967) (disemboweling the Civil Rights Act), Stump v. Sparkman, 435 U.S. 349 (1978), et al., ad nauseum.

Whereas I would trust a jury, I would not trust Jabba the Scalia as far as I can throw him.

I recently served on a criminal jury in Nevada. Jurors are permitted to write questions, submit them to the court, and the attorneys and judge go in the back room and I assume argue over which are to be answered because the judge decides which ones get answered and the others are just tossed. The question are indeed identified to the judge and counsel by juror name and number.

I found the process to be important because a number of very good legal questions went unasked by the prosecution, I assume due to lack of experience. Questions to expert witnesses such as “Are you an expert in forensic psychiatry (expert was testifying on the subject) and is there a certification given in that discipline? ” Pretty basic stuff you’d expect one side to use to impugn the other, but was not asked by counsel. Some of the questions made the witnesses squirm because they were so on point.

I’m with Vince on the question issue, as well as the adopted procedure. I think in fairness that the attorneys should be allowed to reopen their examinations if it shows that the testimony didn’t make something clear. For example, if the witness is an economist and the question is: “OK, what’s this whole ‘discounting to present value deal about?'” the lawyer ought to be able to ask the witness questions that will (hopefully) better explain the subject.

On the voir dire issue, I’ll plead no lo. I know that more meaningful jury questionnaires have helped speed things up. I’d just like to see some empirical investigation of the actual effect of various voir dire procedures on outcomes.